Arbitrariness

King County (Washington) Prosecutor Dan Satterberg (pictured) announced that his office will no longer seek the death penalty against Michele Anderson after a jury returned a life sentence for her co-defendant, Joseph McEnroe. McEnroe and Anderson were charged with killing six members of Anderson's family in 2007 in what Satterberg called "one of the worse crimes we've ever had in King County." Satterberg explained his decision in a news conference on July 29, saying, "To proceed with the death penalty against defendant Anderson, in light of the sentence imposed [on] defendant McEnroe, would not be in the interest of justice." Pam Mantle, the mother of one of the victims, said she was relieved by the decision. “It’s been devastating for all of our friends and family,” said Mantle. “We’re all just worn out from the whole thing. It’s almost eight years.“ Less than one week ago, on July 23, after a highly publicized six-month trial, a King County jury sentenced a mentally ill defendant, Christopher Monfort, to a life sentence in the killing of a Seattle police officer. Anderson has spent time in a state mental institution during her pretrial incarceration, portending extensive presentation of mental health evidence if the death penalty was pursued in her case. Seeking the death penalty against Anderson, McEnroe, and Monfort has cost King County taxpayers more than $15 million in defense costs alone. A recent Seattle University study found that cases where the death penalty is sought cost an additional $1 million, on average, compared to non-death penalty cases.

The Supreme Court of Delaware voted unanimously on July 27 to suspend former Deputy Attorney General R. David Favata as a result of his misconduct during a recent capital trial. With a single dissent as to the length of the suspension, the Court banned Favata from the practice of law for six months and one day for intentional misconduct during the capital trial of Isaiah McCoy. Earlier this year, the state Supreme Court overturned McCoy's conviction and death sentence and ordered a new trial because of Favata's misconduct. The court found that Favata had committed seven distinct ethical violations in McCoy's case, including vouching for the testimony of a key government witness, repeatedly belittling McCoy as he attempted to represent himself at trial, and lying to the judge about attempting to intimidate McCoy. At one point, Favata objected to defense questioning of the victim's girlfriend and during the objection told the jury that McCoy had "shot her boyfriend." During a break in the proceedings, Favata commented in front of McCoy about a mafia code of silence, and said he would put a detective back on the stand to tell everyone that McCoy was a snitch. After McCoy raised the matter with the court, Favata lied about making these comments, prompting a court officer to pass a note to the judge saying that McCoy was telling the truth. Favata also repeatedly disparaged McCoy's attempt to represent himself, saying "The trouble with dealing with somebody with a limited education and no legal education is he doesn't clearly understand what he's reading." The prosecutor also demeaned McCoy by telling him to "start acting lke a man" and criticizing his attire, saying "You can dress him up. He’s still a murderer.” The case was the second time since 2014 that Delaware courts granted a new trial for prosecutorial misconduct in a capital case. In May 2014, Jermaine Wright won a new trial after 21 years on death row when prosecutors and police withheld exculpatory evidence about possible alternate suspects in a case in which no forensic or eyewitness evidence linked Wright to the crime.

A recent article in the The New York Times Magazine examines the effects of the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA), which was intended to streamline and shorten capital appeals. Its title summarizes the statute as "The Law That Keeps People on Death Row Despite Flawed Trials." Emily Bazelon opens the article with the story of death-row prison Hector Ayala, who was tried before a jury from which prosecutors excluded all 7 black or Latino jurors. The federal appeals court overturned Ayala's death sentence but in turn was reversed in a 5-4 opinion by the Supreme Court, with Justice Alito saying that habeas corpus judges should intervene only in "extreme" cases. AEDPA restricts federal review of habeas corpus appeals, limiting federal judges to overturning state courts only when a state court decision is not just wrong, but "was contrary to, or involved an unreasonable application of, clearly established federal law” or “was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." The High Court's interpretation of this language, say Judges Alex Kozinski and Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit in separate articles criticizing the unjust impact of the statute, has often left federal judges powerless to correct constitutional violations, even when the defendant appears to be innocent. Bazelon highlights the consequences of this judicial abstentionism on innocence cases, such as when Troy Davis was denied a new trial by the federal courts and was executed despite presenting evidence that "7 of the 9 eyewitnesses who testified against [him] at trial had recanted, and new witnesses implicated someone else." The Davis case produced a now-famous statement by Justice Scalia that habeas corpus is not available to prevent the execution of an innocent person if he was fairly convicted. A 2007 study showed that rather than hastening appeals, the average time courts spend on habeas cases has actually increased since the law went into effect. Instead, the law has become, in the words of Cornell law professor John Blume, a vehicle for “agenda-driven judicial policy-making.”

Philip Holloway, a CNN legal analyst who has been both a prosecutor and criminal defense attorney, says in a recent op-ed that "it is hard not to question the rationality -- indeed the sanity" of the death penalty. Holloway says "there are several practical reasons why the death penalty just doesn't make sense any longer, if it ever really did in the first place," and outlines five reasons why he believes the United States should reconsider capital punishment. First, he says that life without parole is actually a harsher punishment than the death penalty, citing the harsh conditions of maximum-security prisons on the state and federal level. Second, Holloway points to the ongoing trial of James Holmes in Colorado as one instance of the excessive cost of the death penalty. The Holmes trial is expected to cost about $3.5 million, compared to an average of $150,000 in cases without the death penalty. Third, he notes the toll of capital cases on victims' families: "family members and loved ones of murder victims often find themselves entangled in the justice system for a very long time" because of lengthy appeals after a death sentence is handed down. His fourth point is the uneven application of the death penalty, which he says is the result of prosecutorial discretion in whether to seek a death sentence. Finally, Holloway says, "Despite safeguards, innocent people do wind up on death row." He mentions the 154 people exonerated from death row, highlighting last year's exoneration of Henry McCollum, who spent 30 years on death row before being cleared by DNA evidence. "Our criminal justice system -- and those caught up in it, including the families of victims -- would be the biggest beneficiaries should we choose to end capital punishment in the United States," he concludes.

According to Charles J. Ogletree, Jr., a Harvard law professor who taught President Obama and the First Lady when they were law students, the President may be changing his views on capital punishment. Obama has said that he supports executions for "especially horrific" murders, but has also raised concerns about the death penalty. Ogletree said that Obama's recent focus on racial bias in the criminal justice system, as well as declining public support for the death penalty, may drive the President to oppose capital punishment. "He's not there yet, but he's close," Ogletree said. "Even if he doesn't change his mind in the next year and a half, I think the public's point of view is going to influence him." A former strategist for President George W. Bush, Matthew Dowd, recently compared changing public views on the death penalty and same-sex marriage, saying, "Twenty years from now, people that are for the death penalty are going to be in the same place as people that are against gay marriage." In 2014, Obama commented on the death penalty after the botched execution of Clayton Lockett. "In the application of the death penalty in this country, we have seen significant problems -- racial bias, uneven application of the death penalty," he said. A growing body of research supports Obama's statement about racial bias. For example, a study in Philadelphia found that the odds of a jury handing down a death sentence were 29 times higher if the defendant was black, and that murder cases involving a black defendant and a white victim resulted in death sentences at 5 times the rate of cases in which the races were reversed.

A new study by Professor Frank Baumgartner of the University of North Carolina at Chapel Hill finds stark racial and geographic disparities in the application of the death penalty in Missouri. A majority of Missouri's executions came from just 2.6% of the state's counties, mirroring national trends, as 2% of U.S. counties have produced 52% of all executions since 1976. St. Louis County - the home of Ferguson, Missouri - has carried out more executions than any other Missouri jurisdiction. A person convicted of homicide in that county is three times more likely to be executed than someone convicted of the same crime elsewhere in the state and is 13 times more likely to be executed than for having committed the same crime in neighboring St. Louis City. Baummgartner also found significant racial disparities, particularly relating to the race of victims. Homicides involving white victims were 7 times more likely to result in executions than those involving black victims. Although 60% of murder victims in Missouri are black, 81% of people executed in Missouri had been convicted of killing white victims. Cases involving white female victims were 14 times more likely to result in execution than those involving black male victims. "If left unaddressed, these racial, gender, and geographic disparities may erode judicial and public confidence in the state’s ability to fairly administer the ultimate punishment," Baumgartner concludes. "A punishment that is so arbitrarily and unfairly administered could reasonably be deemed unconstitutional." (Click image to enlarge.)

According to a study by the Women Donors Network, 95% of elected prosecutors in the U.S. are white and 79% are white men. An analysis by DPIC of the study's data further shows that, in states that have the death penalty, 94.5% of elected prosecutors are white. In 9 death penalty states (Colorado, Delaware, Idaho, Montana, Oregon, South Dakota, Tennessee, Washington, and Wyoming), 100% of elected prosecutors are white. These numbers reveal that there has been little change from the time of a 1998 study that found that 97.5% of District Attorneys in death penalty states were white. Prosecutors wield significant power in criminal cases, making decisions about whether to accept plea deals and whether or not to seek the death penalty in capital murder cases. This discretion can be a source of racial disparities in sentencing. “What this shows us is that, in the context of a growing crisis that we all recognize in criminal justice in this country, we have a system where incredible power and discretion is concentrated in the hands of one demographic group,” said Brenda Choresi Carter of the Women Donors Network. Bryan Stevenson, director of the Equal Justice Initiative, said, “I think most people know that we’ve had a significant problem with lack of diversity in decision-making roles in the criminal justice system for a long time. I think what these numbers dramatize is that the reality is much worse than most people imagine and that we are making almost no progress.” (Click image to enlarge)

Two new studies suggest that a defendant's facial appearance predicts whether he is sentenced to life or to death, regardless of actual guilt or innocence. A study of Florida inmates published in the July 15 edition of Psychological Science finds that the perceived degree of trustworthiness of a defendant's face predicted which of the two sentences a defendant who has been convicted of murder ultimately received. A follow-up study also showed that the link between perceived untrustworthiness and the death penalty persisted even when study participants viewed innocent people who had been exonerated after having originally been sentenced to death. Researchers John Paul Wilson (pictured, l.) and Nicholas Rule (pictured, r.) of the University of Toronto showed participants photos of Florida inmates who had been convicted of first-degree murder and sentenced either to life without parole or death. Participants rated the trustworthiness of each face, without knowing that the person pictured had been convicted of any crime. The inmates who had been sentenced to death had faces that the raters perceived to be less trustworthy than the faces of those who had been sentenced to life. The less trustworthy a face was rated, the more likely it was that the inmate had been sentenced to death. "Here, we’ve shown that facial biases unfortunately leak into what should be the most reflective and careful decision that juries and judges can make — whether to execute someone," Wilson and Rule said. A follow-up study included the faces of individuals who had been convicted and later exonerated. Even among the exonerees, lower trustworthiness ratings correlated with higher likelihood of a death sentence. "This finding shows that these effects aren’t just due to more odious criminals advertising their malice through their faces but, rather, suggests that these really are biases that might mislead people independent of any potential kernels of truth," the authors explained.